One of the questions I get most often is whether or not my client needs a consent judgment.  To answer that question, it probably is best to explain what a consent judgment is.  A consent judgment is nothing more than a court order that is agreed to by both parties to a lawsuit.  In order to get a court order, you must have a lawsuit filed, which means there has to be a complaint, an answer, and some type of motion or request for the court to set a hearing and sign the order (i.e. approve it).

What if you don’t have a consent judgment?  It is possible to handle your entire divorce case, (with the exception of the granting of the divorce decree, which must be done by a judge in North Carolina), without court intervention.  In this case, the parties will have an agreement or contract drawn up that dictates how property will be divided up, and who will pay what to whom.

So the question becomes, what is the point of the consent judgment if you already have a contract?  The answer lies in the way the contract or judgment is enforced if one party breaches.  If you have a contract with someone, and you fail to pay on that contract, then their recourse is to sue you for money damages, i.e. the money you owe them.  However, if you are ordered to do something by a court, and you fail to do what the court says, then you can be held in contempt of court.  If you are held in wilful contempt of court, the court is not limited to the money damages remedy that you would have to pay for breaching a contract.  The court can order any number of things, including having you pay attorneys fees, money damages, or even send you to jail.

So the biggest difference between executing a separation agreement, and asking the court to adopt that agreement is the manner in which it is enforced.  If you are the spouse that is dependant on the other spouse for the payment of child support or alimony, than chances are you would like to have a consent judgment entered.  However, if you are the paying spouse, than you are more likely to want only a separation agreement – you don’t want the contempt power hanging over your head if you don’t pay!